INTERNATIONAL COURT OF JUSTICE
(REQUEST FOR AN ADVISORY OPINION)
OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE
RESPONSE OF THE REPUBLIC OF MALDIVES TO THE JUDGES’
QUESTIONS
20 December 2024
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1. The Republic of Maldives (“the Maldives”) submits the present response pursuant to
the Court’s letter dated 13 December 2024 communicating questions posed by
individual Judges.
2. Judge Aurescu has posed the following question:
“Some participants have argued, during the written and/or oral stages of the
proceedings, that there exists the right to a clean, healthy and sustainable
environment in international law. Could you please develop what is, in your
view, the legal content of this right and its relation with the other human
rights which you consider relevant for this advisory opinion?”
3. The Maldives is part of a core group of States (also comprising Costa Rica, Morocco,
Slovenia and Switzerland) advancing the right to a clean, healthy and sustainable
environment under international law. This core group tabled before the United Nations
Human Rights Council the draft resolution which was adopted as Resolution 48/13
(“Resolution 48/13”) and which unequivocally recognises the human right to a clean,
healthy and sustainable environmental for all. The States of the same core group were
the original sponsors of United Nations General Assembly Resolution 76/300
(“Resolution 76/300”) which, following a large consultation among United Nations
Member States, endorsed this right.1
4. Given the formulation of Judge Aurescu’s question, in this response, the Maldives
focuses on the legal content of the human right to a clean, healthy and sustainable
environment (rather than, for example, the crystallisation of this right as a matter of
customary international law).
5. The Maldives submits that this human right guarantees that individuals should have
access to clean air, a safe climate, healthy and sustainably produced food, access to safe
water and adequate sanitation, non-toxic environments in which to live, work and play,
and healthy ecosystems and biodiversity. 2 Individuals’ enjoyment of this right
correlates to obligations on States to protect and promote this right, with those
obligations forming an essential part of the right’s legal content. In this response, the
1 United Nations General Assembly Resolution 76/300, UN Doc. A/RES/76/300 (1 August 2022).
2 Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment, “Right to a healthy environment: good practices”, UN
Doc. A/HRC/43/53 (30 December 2019), paras. 38–112.
2
Maldives wishes to highight four of the obligations which (among others) States bear
in order to protect and promote this right.
6. First, due to the existence of this right, States have an obligation not to cause
environmental harm to a degree that will jeopardise “the quality of life and the very
health of human beings” (to use the Court’s language in the Nuclear Weapons Advisory
Opinion). 3 The African Commission on Human and Peoples’ Rights (“the
Commission”) confirmed as long ago as 2001 that, by virtue of the right to a healthy
environment, a State must “desist from directly threatening the health and environment
of their citizens”.4 This duty is closely linked to States’ obligations to promote and
protect other human rights. For example, it has been recognised that “[e]nvironmental
degradation [and] climate change … constitute some of the most pressing and serious
threats to the ability of present and future generations to enjoy the right to life”.5 The
United Nations Human Rights Committee has further stated that “the obligation of
States parties to respect and ensure the right to life extends to reasonably foreseeable
threats and life-threatening situations that can result in loss of life” and that “such
threats may include adverse climate change impacts”.6 A clean, healthy and sustainable
environment is equally essential to enjoyment of other rights, including the rights to the
highest attainable standard of physical and mental health, to an adequate standard of
living, to adequate food, to safe drinking water and sanitation, to housing, and to
participation in cultural life.7 A State cannot ensure any of these relevant rights if it
engages in conduct which itself causes serious environmental degradation.
7. Secondly, States are required to guarantee the right to a clean, healthy and sustainable
environment by taking positive steps to protect the environment, including from harm
caused by private actors. The United Nations Human Rights Committee has stated that
States parties are under a duty to take “measures … to preserve the environment and
protect it against harm, pollution and climate change caused by public and private
3 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226 at pp.
241–242, para. 29.
4 The Social and Economic Rights Action Center and Others v Nigeria [2001] ACHPR 35, para. 52.
5 United Nations Human Rights Committee, General Comment No. 36, Article 6: right to life, UN Doc.
CCPR/C/GC/36 (3 September 1999), para. 62.
6 United Nations Human Rights Committee, Daniel Billy and others v Australia, Communication No.
3624/2019, UN Doc. CCPR/C/135/D/3624/2019 (21 July 2022), para. 8.3.
7 Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment, UN Doc. A/HRC/37/59 (24 January 2018), Annex,
para. 4; United Nations Human Rights Council Resolution 48/13, “The human right to a clean, healthy
and sustainable environment”, UN Doc. A/HRC/RES/48/13 (8 October 2021), Preamble.
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actors”.8 The African Commission has likewise recognised that a State must take
positive steps, as a matter of its human rights obligations, to protect the environment,9
“not only through appropriate legislation and effective enforcement but also by
protecting them from damaging acts that may be perpetrated by private parties”.10
8. Thirdly, the right to a clean, healthy and sustainable environment has a procedural
aspect which requires States to guarantee to individuals a right to participate in decisionmaking
concerning or affecting the environment and to access to justice in
environmental matters. This is reflected in the Preamble to Resolution 48/13, which
recognises “the rights to seek, receive and impart information [and] to participate
effectively in the conduct of government and public affairs”, which it states are “vital
to the protection of a clean, healthy and sustainable environment”. 11 The same
Resolution refers to the importance of “effective individual access to justice and
effective remedies for environment-related concerns”. 12 It also exhorts States to
enhance cooperation with (among others) “civil society [and] national human rights
institutions and business”13 — a further indication that States are expected to invite
wide participation in decision-making concerning the environment. The Special
Rapporteur has similarly stated that “[a]ccess to information is a widely recognized
human right and is essential for people to be able to protect and defend their human
rights from potentially harmful environmental impact”, while also advocating for
“broad, inclusive and gender-sensitive public participation” in environmental decisionmaking
as important for “fulfil[ling] human rights obligations”.14 The Inter-American
Court of Human Rights has given a detailed analysis of the procedural obligations in
8 United Nations Human Rights Committee, General Comment No. 36, Article 6: right to life, UN Doc.
CCPR/C/GC/36 (3 September 1999), para. 62 (emphasis added).
9 The Social and Economic Rights Action Center and Others v Nigeria [2001] ACHPR 35, para. 52
(“requires governments to take necessary steps for the improvement of all aspects of environmental and
industrial hygiene”).
10 The Social and Economic Rights Action Center and Others v Nigeria [2001] ACHPR 35, para. 57.
11 United Nations Human Rights Council Resolution 48/13, “The human right to a clean, healthy and
sustainable environment”, UN Doc. A/HRC/RES/48/13 (8 October 2021), Preamble.
12 United Nations Human Rights Council Resolution 48/13, “The human right to a clean, healthy and
sustainable environment”, UN Doc. A/HRC/RES/48/13 (8 October 2021), Preamble. See also United
Nations General Assembly Resolution 76/300, UN Doc. A/RES/76/300 (1 August 2022), Preamble (“the
right[] … to an effective remedy, is vital to the protection of a clean, healthy and sustainable
environment”).
13 United Nations Human Rights Council Resolution 48/13, “The human right to a clean, healthy and
sustainable environment”, UN Doc. A/HRC/RES/48/13 (8 October 2021), para. 4(a).
14 Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment, “Right to a healthy environment: good practices”, UN
Doc. A/HRC/43/53 (30 December 2019), paras. 14, 22.
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the context of human rights and environmental protection.15 The Court has explained
that these obligations include providing access to information (noting that, in general,
“information must be handed over without the need to prove direct interest or personal
involvement in order to obtain it”16), facilitating public participation (requiring States
to allow “the participation of persons subject to their jurisdiction in decision-making
and policies that could affect the environment, without discrimination and in a fair,
significant and transparent manner”17), and access to justice (which, in the context of
environmental protection, must “permit[] the individual to ensure that environmental
standards are enforced and provide[] a means of redressing any human rights violations
that may result from failure to comply with environmental standards, and includes
remedies and reparation”18).
9. Fourth, the right to a clean, healthy and sustainable environment imposes on States an
obligation to cooperate in order to promote and protect this right. As the Maldives
explained in its oral submissions in the present advisory proceedings,19 States have a
duty to cooperate in order to achieve universal respect for and observance of human
rights.20 This obligation undoubtedly applies in relation to the human right to a clean,
healthy and sustainable environment,21 not least because of the transnational nature of
the risks and barriers to enjoyment of this right (including climate change) which
require a collective response. Indeed, Resolution 48/13 expressly encourages States to
“enhance cooperation with other States, the Office of the United Nations High
Commissioner for Human Rights [and] the rest of the United Nations system” (among
others), as well as to “continue to share good practices in fulfilling human rights
obligations relating to the enjoyment of a clean, healthy and sustainable
15 Inter-American Court of Human Rights, Advisory Opinion OC-23/17 on the Environment and Human
Rights, 15 November 2017, paras. 211–241.
16 Inter-American Court of Human Rights, Advisory Opinion OC-23/17 on the Environment and Human
Rights, 15 November 2017, para. 219.
17 Inter-American Court of Human Rights, Advisory Opinion OC-23/17 on the Environment and Human
Rights, 15 November 2017, para. 231.
18 Inter-American Court of Human Rights, Advisory Opinion OC-23/17 on the Environment and Human
Rights, 15 November 2017, para. 234.
19 CR 2024/44, Maldives (Hart), p. 55, para. 13.
20 Charter of the United Nations, 26 June 1945 (entered into force 24 October 1945), Articles 55–56;
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, UNGA Resolution 2625 (XXV), UN Doc.
A/RES/2625(XXV) (24 October 1970).
21 See, e.g., Inter-American Court of Human Rights, Advisory Opinion OC-23/17 on the Environment and
Human Rights, 15 November 2017, paras. 181–210.
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environment”.22 Further, Resolution 76/300 states, in the context of recognising the
right to a clean, healthy and sustainable environment, that “international cooperation
has an essential role in assisting developing countries, including highly indebted poor
countries, least developed countries, landlocked developing countries, small island
developing States, as well as the specific challenges faced by middle-income countries,
in strengthening their human, institutional and technological capacity”.23 This same
Resolution calls upon “States, international organizations, business enterprises and
other relevant stakeholders … to enhance international cooperation, strengthen
capacity-building and continue to share good practices in order to scale up efforts to
ensure a clean, healthy and sustainable environment for all”.24
22 United Nations Human Rights Council Resolution 48/13, “The human right to a clean, healthy and
sustainable environment”, UN Doc. A/HRC/RES/48/13 (8 October 2021), para. 4(a)–(b).
23 United Nations General Assembly Resolution 76/300, UN Doc. A/RES/76/300 (1 August 2022),
Preamble.
24 United Nations General Assembly Resolution 76/300, UN Doc. A/RES/76/300 (1 August 2022), para.
4.
Written reply of Maldives to the question put by Judge Aurescu at the end of the hearing held on 13 December 2024